FCC Loses Comcast Case: End of Line for FCC’s Creative Claims of Authority?

The decision inComcast v. FCCis out and it’s a resounding defeat for the Federal Communications Commission and the agency’s creative interpretations of “ancillary jurisdiction.” The U.S. Court of Appeals for the District of Columbia just wasn’t buying the FCC’s claim that it had “ancillary jurisdiction” to enforce amorphous policy principles against Comcast under past case law or, more amazingly, via some deregulatory-minded passages from the Telecommunications Act of 1996. [For all the background on this case and the definitive refutation of the agency’s jurisdictional assertions, see this paper and this filing by my colleague Barbara Esbin. Barbara practically wrote the script for the Court’s decision today through her meticulous debunking of each of the agency’s creative theories of law.]

I’m just working my way through the decision for a second time and will likely have more to say about it in coming days, but I just had to reprint this one passage from the decision on pg. 23-4, in which the Court notes that the FCC is basically asking for “anything goes” authority over all networks and the Internet:

Were we to accept [the agency’s] theory of ancillary authority, we see no reason why the Commission would have to stop there, for we can think of few examples of regulations that apply to Title II common carrier services, Title III broadcast services, or Title VI cable services that the Commission, relying on the broad policies articulated in section 230(b) and section 1, would be unable to impose upon Internet service providers. If in Midwest Video I the Commission “strain[ed] the outer limits of even the open-ended and pervasive jurisdiction that has evolved by decisions of the Commission and the courts,” 406 U.S. at 676 (Burger, C.J., concurring), and if in NARUC II and Midwest Video II it exceeded those limits, then here it seeks to shatter them entirely.

Powerful stuff. The question now is whether the FCC learns its lesson — that it should seek the proper authority from Congress to impose new regulations like Net neutrality rules — or if the agency instead engages in another effort to concoct regulatory authority via regulatory classification. If the agency takes that latter approach and tries to pigeonhole everything into Title II and deem everyone under the sun to be a common carrier, it will become Regulatory World War III. Lawsuits will fly. Some carriers have already promised as much.

When will the agency accept the fact that it is not above the law and that there is a right way in a democracy to go about changing policies that have such a profound impact on our economy? Imagine if the Department of Health and Human Services would have tried to ram the recent health care bill through as a regulatory scheme instead of having Congress debate it out and vote on it. People would have been outraged. And yet that’s essentially what the FCC is proposing to do when it comes to Net neutrality regulation and Title II regulatory reclassification.

The District Court’s decision today should encourage the Commission to pause and reconsider its current approach. But I fear the agency will instead retrench and fight on in its futile attempt to take the law into its own hands and ignore the will of Congress.

Adam Thierer / Adam is a senior research fellow at the Mercatus Center at George Mason University. He previously served as President of the Progress & Freedom Foundation, Director of Telecom. Studies at the Cato Institute, and Fellow in Economic Policy at the Heritage Foundation.